Trump's Legal Struggles: Trials Beyond the Presidency

In contrast to his previous impeachment, the evidence of Trump’s misdeeds should now be obvious to everyone who has seen it in living color on cable television. We no longer have to wonder whether Trump really did what he is accused of. In the words of George H.W. Bush, we can literally read his lips.

Even after he saw the level of violence that he had unleashed, he complimented the rioters and told them that he loved them. After that, he did nothing.

Turn on the TV, and Trump was ever-present in exhausting detail, especially when he spoke for nearly an hour, inciting the mob that went on to sack the US Capitol. After listening to Trump, that mob threatened the vice president of the United States with hanging and then erected a gallows to make its point. It ransacked the offices of House members and senators, defiled their possessions, and stole classified information. Members of the mob made their intentions clear: They wanted to overthrow the government of the United States. Trump effectively told them to get to it. As the soon-to-be ex-president pointedly phrased it: “If you don’t fight like hell you’re not going to have a country anymore.”

This is a shared article by Global Insights Magazine/Global Geneva and our media partner, Who, What, Why, an investigative newsportal. This is to help broaden free reader access to independent and critical reporting in the public interest worldwide. A reminder: If you like what we do, then please become a Support Member of our non-profit Global Geneva Group and subscribe to our newsletter.

Trump may not be directly responsible for the death of Brian D. Sicknick, the Capitol police officer who died in the melee, or Capitol Police Officer Howard Liebengood, who killed himself three days after the riot, but Trump clearly set that machine in motion. Even after he saw the level of violence that he had unleashed, he complimented the rioters and told them that he loved them. After that, he did nothing. No National Guard, no police, no security forces went to rescue the terrified senators and House members under siege.

The reason that the Capitol had been left defenseless is obvious. The security forces felt that they couldn’t act without authorization, and that had to come from the top of a chain of command under control of a commander in chief who clearly sympathized with the assault. The goal of the attack, which had been planned for days, was to stop the US Senate from ceremonially certifying the Electoral College vote, effectively ending Trump’s term in office.

Should a president be any different?

One might dismiss the deaths and destruction to the Capitol as mere collateral damage, but there is no question that they resulted from the riot and that the riot itself resulted from a premeditated strategy — organized, supported, and executed by followers of the former president. If an innocent bystander is accidentally shot and killed in the middle of an armed robbery, the robbers are held responsible for that homicide, even if one of the gang did not personally pull the trigger. Should a president be any different?

If this were a normal trial, it would be an open and shut case. But impeachment relies more on political calculations by the US Senate — the senators themselves are considered jurors — than on criminal law. The outlines are defined in Article II of the US Constitution. Faced with an insurmountable task, Trump’s lawyers have seized on the wording of the Constitution as their primary line of defense when it comes to defending the indefensible. Their argument, which has now been enshrined in talking points and is constantly repeated by the Republican side of the Senate, is that the Constitution defines impeachment as the removal of the president from office, and since Trump is no longer in office, there is no need to follow through with a trial.

Unfortunately for Trump, two strong legal precedents argue that the Senate has had no trouble in the past in going ahead with an impeachment trial after a defendant is no longer in office. The first precedent involved Sen. William Blount, who in 1797 engaged in a plot to help the British take over Florida and Louisiana in the hopes of increasing the value of land that he already owned. His lawyers made the same argument that Trump’s lawyers are trying to make today. The Senate did not buy it, and Blount stood trial several months after leaving office. William Belknap, secretary of war during the presidency of Ulysses S. Grant, was impeached for accepting bribes. Belknap resigned his post expressly to avoid being tried by the Senate. He too was forced to stand trial even though he was no longer in office.

What Trump’s lawyers conveniently overlook when they argue that convicting him will accomplish nothing significant is that the second part of Article II in the Constitution states that if he is convicted, Congress can use a simple majority vote to prevent him from running in future elections.

That may seem like a minor detail, but it is not. For the last four years, Republicans in the Senate and the House of Representatives have looked the other way while Trump repeatedly violated the nation’s basic values, tore babies from their mothers in hastily rigged detention camps, dismantled critical parts of the civil service, tried to destroy the independence of the US judicial system, did his best to corrupt state and federal officials, and finally attempted to disenfranchise millions of American voters. The GOP’s excuse for inaction was that it feared retaliation from Trump in upcoming primary elections.

Impeachment finally offered these timorous legislators a way out. If they could convict Trump, they would not have to worry about him bullying them in the future. For a brief moment, it seemed like Republicans might go for it. Liz Cheney, the third most influential Republican in the House of Representatives, denounced Trump for inciting insurrection. Former Senate Majority Leader Mitch McConnell finally spoke out after months of silence.

From the Proud Boys to the “Oath Keepers” to the alt-Right, the most outrageous followers of this tendency are the spiritual descendants of the defenders of slavery who in America’s early days argued that anyone who was black was only three-fifths of a person.

Angry shouts from Trump supporters promptly herded the cowering Republican senators back into line. Sure, Trump had incited insurrection; sure, he had tried to browbeat state legislatures and local election officials into fraudulently overturning the election; sure, the former president was clearly delusional; but should we really be upset? Couldn’t we just forget the whole thing and let the man retire in peace?

As it turns out, retirement may be the last thing that Trump has in mind. Far from quietly retiring to play golf, he gives the impression that preparations for a comeback in 2024 are already underway, either for himself or members of his immediate family. In case anyone missed the point that Trump sees his political career as anything but over, Kevin McCarthy, now GOP minority leader in the House, paid the former president a call at his Mar-a-Lago golf club. No one doubted that McCarthy made the pilgrimage to pledge fealty.

A recent poll by Toronto-based RMG Research suggested that if Trump were to start his own “Patriot Party,” it would likely win the support of 23 percent of the electorate, leaving the GOP in third place with only 17 percent and guaranteeing future wins for the Democrats.

The ultimate intention was destructive

It might seem reasonable to some Republicans to dismiss the mob assault on the Capitol as nothing more than the excessive enthusiasm of a deluded bunch of clown-like, would-be insurrectionists. The attackers, particularly the crazed vegan stripped to the waist, painted blue, and wearing a fur cap with buffalo horns, looked more like characters in a comic book than terrorists who needed to be taken seriously. But looks, even silly ones, can be deceiving. The ultimate intention of the rioters was as destructive and targeted as any band of Middle Eastern bomb throwers. Their stated objective was to overthrow the United States government. That they failed miserably does not mean that they are not still dangerous.

The natural temptation is to refer back to the 1930s when fascist thugs rampaged through Germany and Italy preparing the way for the rise of Hitler and Mussolini. But in fact, the mob that Trump encouraged to storm the Capitol was following a line of logic that has existed in America since colonial days. Trump merely excited the extremists enough so that they felt safe to come out in the open.

These are the people who look the other way when challenged by the homeless. Although they would never admit it, the most extreme cases would just as soon keep the poor in perpetual poverty. If people have no other choice, they will work for next to nothing.

From the Proud Boys to the “Oath Keepers” to the alt-right, the most outrageous followers of this tendency are the spiritual descendants of the defenders of slavery who in America’s early days argued that anyone who was Black was only three-fifths of a person. This is a segment of American society that after Emancipation in 1863 switched to Jim Crow and the lynch-mentality that upheld the myth of the “Lost Cause.”

They made an easy transition from slavery that kept men and women in chains to a form of economic slavery that was just as potent. In the South, they instituted sharecropping and rigged it to keep an underpaid workforce permanently bound to the land. Along the way, they supported the Ku Klux Klan and unleashed frenzied lynch mobs that brutally murdered more than 4,000 African Americans.

Through all this, they told themselves that murder was justified because the white race had been “chosen by God” to be superior. Racism exists in many countries, but it has been particularly dreadful in America. Critics lashed out at Hillary Clinton for labeling this element of American society as the “deplorables,” but the truth is that they really are deplorable — the assault on the Capitol was conclusive proof, if any were needed. Yet these people are as much a part of American history as the Founding Fathers.

Growing inequality does not bother these people as long as they are on the winning side. In their vision of America, the well-off can always seek safety in gated communities. These are the people who look the other way when challenged by the homeless. Although they would never admit it, the most extreme cases would just as soon keep the poor in perpetual poverty: If people have no other choice, they will work for next to nothing.

What we must come to terms with here is not so much a return to antebellum slavery, Jim Crow racism, or even a resurgence of European fascism. It is much closer to a modern form of economic feudalism. The new barons are corporate CEOs. The elite share the nation’s wealth, but only among the “right people,” the “real Americans.” As they see it, wealth naturally belongs to the rich. As for the rest, if so many Americans are condemned to grinding poverty, those are the breaks of the game. After all, if there were nothing wrong with them, they wouldn’t be poor.

Take a look at Kentucky, the state represented by Republican, now minority leader, Mitch McConnell. Kentucky has the fifth-highest level of poverty in the United States, and yet when efforts to reduce that poverty are proposed, McConnell hesitates and says the money might be better spent elsewhere.

As the population becomes even more diverse, the GOP’s only way out is to steer the country away from democracy and to institute even more measures to discourage what it sees as the “wrong people” from voting.

In a way, the country owes a debt to Georgia’s outspoken Rep. Marjorie Taylor Greene, a QAnon enthusiast who likes to carry a gun and has hinted that she thinks that House Speaker Nancy Pelosi should be executed in public. Greene’s principal gift to the nation has been clarity. At least we know where she stands. She is absolutely clear about where she is coming from and the vision she sees for America — no euphemisms, no polite evasions. Other Republicans may think as she does — and in fact many do — but they are smart enough not to say so in public.

The bottom line is that this trend we find today in conservative thinking — the political policy that Trump championed and tried to make the mainstream direction in American politics — does not believe in democracy for all Americans. Its core philosophy is to serve a limited group that it believes consists of “real” Americans while letting the rest — Black people, Hispanics, immigrants from just about anywhere other than northern Europe — fend for themselves.

The downside to this political philosophy is that the demography of America is changing, and as even Trump has stated, the Republicans may never win another legitimate election. The fact that the GOP insists on remaining overwhelmingly white means that from now on it will represent an increasingly smaller segment of the American population.

The GOP has not managed to win the popular vote in decades. The only factor that permits it to win an occasional presidential election is the continued anachronism that is the Electoral College — that and a good deal of gerrymandering, along with strategically placed voter suppression here and there. As the population becomes even more diverse, the GOP’s way out is to steer the country away from democracy and to institute even more measures to discourage what it sees as the “wrong people” from voting.

That is basically what Donald Trump tried to do when he mounted a campaign to sabotage mail-in voting months before the election. He even went so far as to sabotage the US Postal Service in a desperate effort to keep Americans from voting. Never has the American system experienced such a blatant and overt assault on its core values. But Trump was responsible for so many outrageous acts that we grew numb to what he was doing.

The Constitution was intended as a road map to keep those we elected on a straight and narrow path. It is intended to remind our elected leaders that their main purpose is to advance national security and the welfare of everyone, not to advance their personal fortunes. Our elected leaders are expected to act in the best interests of the entire country, not just part of it. It is hard not to think that a sizable portion of Congress and the Senate have forgotten that. Instead of representing our interests, they have focused on their own preservation. The Constitution has been reduced to little more than a set of rules which each player can maneuver through to advance his personal interests at the expense of the nation. As Trump’s master strategist, Steve Bannon, put it: Democrats came prepared for a pillow fight, Republicans came armed with knives.

So, this is the real test in the impeachment trial now being held in the US Senate. Will these 50 Republican senators who have taken an oath to serve their country act in the interest of all Americans, or will they yield once more to political pressure in the hope of holding on to their jobs a little while longer? In short, will they follow the mob while pretending to be its leader? Everyone knows the evidence by now. It is in the open. It is no secret. What we don’t know is whether we can trust these chosen men and women to act in our interest and in the interest of the nation. In a few days, we will find out.

Foreign correspondent and author William Dowell is Global Impact Magazine’s America’s editor based in Philadelphia. Tom’s Paine is his regular column. Over the past decades, he has covered much of the globe for TIME, ABC News and other news organizations.

Related front page panorama photo credit: Adapted by WhoWhatWhy from angela n. / Flickr (CC BY 2.0).

Hamburger Menu

Trump's Legal Struggles: Trials Beyond the Presidency

Should a president be any different?

The ultimate intention was destructive

Related articles in Global Geneva